Josh Blackman on Foreign EmolumentsMichael Ramsey

In the 2009 OLC Opinion concerning President Obama’s receipt of the Nobel prize, now-First Circuit Judge Barron wrote that:

The President surely “hold[s] an[] Office of Profit or Trust,” and the Peace Prize, including its monetary award, is a “present” or “Emolument . . . of any kind whatever.”

No analysis whatsoever followed about why the President “surely” hold such a position. One of my biggest pet peeves in legal writing is the word “certainly,” or its close cousin, “surely.” It is conclusory language that papers over the fact that the writer hasn’t made an actual argument. Such is the case here with Barron’s opinion. Fortunately, others have given this some thought.

I have long been persuaded by Seth Barrett Tillman’s tireless research, based on the text of the Constitution, that the President is not a “person holding any office of profit or trust.” Therefore, the Emoluments Clause does not apply to him. [Plus, Laurence Tribe admits that Professor Tillman is "no kook"].

And then the more difficult question:

But could Congress pass a statute regulating the President’s business interests? No. Congress can’t impose additional qualifications on the Presidency beyond those already in the Constitution, such as the Natural Born Citizen Clause. This is consistent with the Court’s holding in U.S. Term Limits v. Thornton, that states cannot impose additional criteria for members of Congress. The argument for executive independence, however, is even stronger. Individual members of Congress can easily recuse from votes that raise conflicts of interest; the President cannot.

In 1972, the Office of Legal Counsel reached this same conclusion in its analysis how then-extant ethical laws impacted Vice President Rockefeller’s business interests. (The opinion was authored by then Deputy Attorney General, and now D.C. Circuit Judge, Laurence Silberman).